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Withers (A Firm) v Antonia Basile Also Known As Antonia Basile Wilson

Judgment Cited authorities 7 Cited in 1 Precedent Map Related
Vincent
Judgment Date18 April 2018
Neutral Citation[2018] HKCFI 509
Year2018
Judgement NumberHCMP1162/2016
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP1162/2016 WITHERS (A FIRM) v. ANTONIA BASILE also known as ANTONIA BASILE WILSON

HCMP 1162/2016

[2018] HKCFI 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCCEEDINGS NO. 1162 OF 2016

_________________________

BETWEEN
WITHERS (A FIRM) Plaintiff
and
ANTONIA BASILE also known as ANTONIA BASILE WILSON Defendant

_________________________

Before: Master J. Wong in chambers (open to public)
Date of Hearing: 30 October 2017 and 28 February 2018
Date of Handing Down of Decision: 18 April 2018

_________________

D E C I S I O N

_________________

INTRODUCTION

1. This is an argument on costs between client and her former solicitors. At this juncture, there are four summonses before this court.

a. The main summons lies in whether the court should or should not allow the defendant to tax 10 bills of the plaintiff.

b. Procedurally, there are 3 summonses taken out by parties (2 from the defendant, and 1 from the plaintiff) to attempt to adduce further evidence before the court.

BACKGROUND

2. On 9 May 2016, the plaintiff commenced the present originating summons (“OS”). The plaintiff was and is a firm of solicitors. It is the former solicitors of the defendant in her divorce proceedings. By the OS, the plaintiff asked the court to tax 5 bills having issued to the defendant.

3. The defendant did not oppose to the OS. However, she went on to issue her own summons asking the court to further allow 10 more bills for taxation under s. 67 of Legal Practitioners Ordinance (Cap.159) (“LPO”)

4. The defendant prepared her affidavit to support the summons. She spent some time explaining her complaints, including that the plaintiff failed to enforce the undertaking given by her husband pursuant to the mediation agreement. In her divorce proceedings, the plaintiff also failed to advise her or advised her wrongly to accept “litigation fund” provided to her by her husband on condition that it would offset against her final ancillary relief at the end. Her view was supported by her two senior counsel and HH Judge Melloy in her Judgment dated 8 December 2015. There was also mismanagement of her legal finding by the plaintiff. It resulted in rushing of MPS applications for litigation funding and immediate demand for costs from her before hearings, or that she would not have legal representations. All bills were duplicated and excessive. As all bills were only interim, she should be entitled to taxation of them under s.67 LPO because were special circumstances justifying the court to exercise his discretion to allow them to be taxed.

5. On 12 July 2016, Master K. Lo dealt with the OS and the summons. Two separate sets of directions were given. On the one hand, the 5 bills would be taxed with directions on itemized bill and list of objections to be filed. On the other, the 10 bills were adjourned for argument with one day reserved. Usual directions for affidavit evidence was given, including that no further affirmation should be filed without prior leave of the court.

6. On 31 October 2016, two affirmations in opposition were filed, one from Mr. Dearle, and the other from Ms. Ser. The former was the partner in charge of the defendant’s case at the material times. He left the defendant in about October 2015. The latter was and is a partner of the defendant. She assisted Mr. Dearle in the defendant’s case when he would be out of town.

7. Ms. Ser explained, inter alia, that the defendant came to the plaintiff for advice in around June 2012. The divorce proceedings were highly acrimonious contentious and hostile. The husband was uncooperative. From September 2014 to October 2015, there were eight substantive hearings, all of which parties were represented by senior counsel. By such time, the husband incurred legal costs of 14 million and the defendant, 8 million. All allegations against the plaintiff made by the defendant were denied, including mismanagement of legal funding, duplicated and excessive charging, ill advice contrary to the defendant’s interest. She also said that “interim bills” issued by the plaintiff was meant to be final for the work during the period of time covered by the work.

8. Mr. Dearle said that he had left the plaintiff. He agreed with Ms. Ser. There were no special circumstances in the 10 bills. He also referred to the decision of the divorce court having reported in [2016] 2 HKLRD 1 to show that the case had raised important issues.

9. The defendant filed and served her 2nd affidavit as reply on 6 February 2017. She disagreed with Mr. Dearle on a number of matters. She reiterated that there were excessive and unreasonable billing practices in the plaintiff who duplicated their costs. The plaintiff was not able to manage her litigation funding properly. The plaintiff gave her bad advice which was not in her best interest. The plaintiff only acted in its best interest to secure substantial lump sums for litigation funding to ensure its bills being paid. It was extremely disappointing for her to realize that the plaintiff had breached her trust in it. All these also led to serious depletion of matrimonial assets and serious liquidity issues. She maintained that there were special circumstances justifying the ten bills to be taxed.

10. So far, the defendant acted in person. One day later, on 7 February 2017, she started to be legally represented herein.

11. In the meantime, regarding taxation of the 5 bills, itemized bill and list of objections were filed and, and will be set down for taxation.

12. As to the 10 bills, on 7 April 2017, parties attended before the listing clerk and obtained the hearing before me on 30 October 2017.

13. Then, about ten days before the scheduled hearing, on 20 October 2017, the plaintiff issued a summons for leave to adduce another affirmation in opposition. An assistant solicitor, Ms. Tsao, did the same. It is only a short affirmation of about four pages but it sought to adduce the 2nd affidavit of Mr. Dearle with quite some pages of exhibits. She explained that it was necessary to deal with 17 new allegations mentioned in the affidavit in reply of the defendant. The plaintiff disagreed with the defendant’s allegations, including that she had not been given certain advice and she was not made aware of certain facts. Only Mr. Dearle was privy to these and could rebut them all. Parties had corresponded about it. On 16 October 2017, the plaintiff wrote to the defendant asking for consent and adjournment of the hearing so that the defendant could also prepare her further affidavit in reply. No agreement could be reached because the defendant insisted on $200,000 costs of adjournment. The plaintiff needed the 2nd affidavit of Mr. Dearle. The defendant would suffer no real prejudice. Among others, there was no urgency and onus lied on the defendant to show special circumstances.

14. In less than one week’s time, on 26 October 2017, the defendant also issued another summons seeking to, inter alia, rely on her 3rd affidavit in case that this court would allow the plaintiff to adduce further evidence. She complained that the 2nd affidavit of Mr. Dearle contained voluminous and confidential materials. No leave was obtained to use them. She disagreed with the allegations and presentation of facts by Mr. Dearle. She went through the affidavit and set out her disagreement. She also produced a written report by a senior law costs draftsman, Mr. David Law dated 25 October 2017. He reviewed 64% of the 10 bills. Out of the sum of about $3 million, he opined that about $1.2 to $1.3 million would be taxed off.

15. One day later, on 27 October 2017, the defendant took out a further summons asking leave to adduce the affirmation of Albert Lam. He went through four out of the ten bills and underlined in red a number of items therein which were examples of excessive duplicative and inappropriate items for the court to consider.

16. Parties appeared before me on 30 October 2017 with the 4 summonses. Both of them were represented by counsel, Mr. Hughes for the defendant and Mr. Lui for the plaintiff. Although parties tried to discuss on the preliminary matters, no agreement was reached.

17. In respect of the 3 late summonses, after hearing from both counsel, to save time and costs, I allowed parties to rely on those evidence on a de bene esse basis. The argument could not be finished by the date and it was then adjourned part-heard to be restored before me today.

PRELIMINARY MATTERS

18. Upon thought, I have decided to dismiss all the 3 late summonses. After Civil Justice Reform, late or last minute application should not be allowed without good reasons. Parties had their usual directions for filing and serving of usual affidavit evidence. It was completed in February 2017. They went before the listing clerk about 2 months later in April. Both of them however took more than half a year and only issued the summonses shortly before the scheduled hearing. There is no reason why those evidence should not have been obtained earlier. The plaintiff is a firm of solicitors. The defendant has been legally represented since February 2017. In any event, with the first round of affidavit evidence, all key documents regarding the dispute, including in particular the retainer and the ten bills have been placed before the court. Further round of affidavit evidence including arguments and comments from law costs draftsman or solicitor on the 10 bills does not assist or assist too much this court in deciding the argument.

19. Hence, they are all dismissed with orders nisi that there be no order as to costs.

THE 10 BILLS

20. I then move to the substance of the parties’ dispute, i.e...

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1 cases
  • Withers (A Firm) v Antonia Basile Also Known As Antonia Basile Wilson
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 4 February 2019
    ...5015125 $7,056.00 Unpaid OS Bill 5 27.1.2016 27.1.2016 4.1.2016 - 26.1.2016 5015139 $221,209.10 Unpaid Total Amount: $7,680,080.80 [1] [2018] HKCFI 509. [2] The words actually came from Mortimer VP’s judgment in Springbok Shipping (HK) Ltd v Clayton Wong & Co [1998] 1 HKLRD 225 at 228F. [3]......

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